Shivakka Ishwar Gudli vs The State of Karnataka and Others

Anand Byrareddy, J.—There is a delay of 1220 days in filing the appeal. The delay is inordinate, however, the appeal itself is considered on merits and therefore, the delay is condoned.

Heard the learned counsel for the appellant. The appellant was the complainant, on the basis of the complaint, the prosecution was launched against accused Nos. 1 to 3. Accused Nos. 1 and 2 are said to have been convicted and sentenced to life imprisonment, whereas accused No. 3, the present respondent No. 2 was acquitted. It is that, which is sought to be challenged by the complainant. The complainant is said to be the widow of the deceased and was not aware that an appeal could be filed by her, it is only on the well wishers giving her a clue that she could indeed challenge the acquittal, that the present appeal is filed.

The facts are stated to be as follows:

The deceased Ishwar Gudli and Accused Nos. 1 to 3 were said to be the residents of Udagatti village and the lands belonging to accused Nos. 1 and 2 and the deceased were neighbouring lands. The deceased Ishwar is said to have purchased the land of one Adivappa Musalmari and created a private road in order to make way for bullock carts and tractors, through their lands to the main road. The accused were also using the said road. The deceased Ishwar was objecting to the accused using the said road. On account of this dispute, there was constant friction between accused Nos. 1 and 2 and the deceased. It was alleged that, on 09.11.2009, at about 8.30 a.m., when the deceased Ishwar Gudli was near his land, accused Nos. 1 to 3 are said to have come there with a common intention to harm the deceased and had picked up a quarrel with Ishwar in respect of a right of way. Accused No. 1 is said to have assaulted with a Kurupi, on the abdomen of the deceased Ishwar and assaulted him on the left hand and caused grievous injuries. Accused No. 2 is said to have assaulted with a Kurupi on the right shoulder of the deceased Ishwar and caused a grievous injury. Accused No. 3 is said to have assaulted the deceased with a cycle chain on his forehead causing an injury. There are said to be eye-witnesses to the incident, namely, P.Ws. 3 and 4 who are said to have witnessed the assault. It transpires that P.Ws. 3 and 4 had informed P.Ws. 7 to 9 of the incident and they had in turn rushed to the spot and found that Ishwar was lying there with serious injuries. On enquiry, Ishwar had informed them that he was assaulted by accused Nos. 1 to 3. Therefore, they had rushed him to Doctor Patagundi Hospital and Dr. Ramesh Patagundi had informed the police and accordingly, the police had recorded the statement of the deceased and it was duly attested by the doctor attending on him. Thereafter, proceedings were initiated in Crime No. 167/2009 and the FIR was sent to the jurisdictional Magistrate, who had in turn visited the hospital and recorded the statement of Ishwar, who was in hospital for over 43 days. A dying declaration was said to have been recorded in due course.

After further investigation and collection of materials and recording the statements of several witnesses, the accused who were said to be absconding were searched for. They were finally traced near Hunshal P.G. Cross and were arrested and brought to the police station. Their voluntary statements were recorded and thereafter, other material objects were gathered.

The charge sheet was filed and the Magistrate took cognizance and registered a case against the accused. Since the victim ultimately died, a case was also registered for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as T.P.C., for brevity). The matter having been committed to the Sessions Court and the charges having been framed, the accused had pleaded not guilty and claimed to be tried.

Thereafter, the prosecution had examined 17 witnesses, and got marked several exhibits and material objects. After recording the statements of the accused, the Court below had framed the following points for consideration.

i) Whether the prosecution proves that on 09.11.2009 at about 8.30 a.m. at Udagatti village on the way near the land of Adiveppa Musalmari when deceased Ishwar Gudli was going, accused No. 1 to 3 with common intention to cause murder of deceased Ishwar Gudli quarreled with him and accused No. 1 has assaulted with kurupi to the left side of stomach and front side of the left hand of deceased Ishwar Gudli and further accused No. 2 has assaulted with kurupi to the right shoulder and accused No. 3 has assaulted with cycle chain and caused grievous injuries to him and when deceased Ishwar was taking treatment for the said injuries in KLE hospital, died on 22.12.2009 on account of the said injuries and caused murder of deceased Ishwar and thereby committed an offence punishable under Section 302 r/w 34 of IPC?

ii) What order?

And the Court below was held that insofar as accused Nos. 1 and 2 were concerned, point No. 1 was answered in the affirmative and in the negative insofar as accused No. 3 was concerned. Accordingly, accused Nos. 1 and 2 were convicted, and accused No. 3 had been acquitted. It is that, which is under challenge in the present appeal.

There are several dying declarations recorded over a period of time. It transpires that the deceased had made oral dying declaration before P.Ws. 1 and 2, who are said to be the relatives of the deceased. The complaint itself was treated as a dying declaration, and the Taluk Magistrate having recorded a dying declaration in the hospital, where the deceased was admitted, that is taken as the third dying declaration. The Court below has found that there were inconsistencies insofar as the oral evidence and dying declarations are concerned. Particularly, the dying declaration recorded before the Taluk Magistrate, the deceased had not named accused No. 3 and it is only the purported dying declaration orally stated to P.Ws. 3 and 4 that the name of accused No. 3 is said to have been mentioned. This was the crucial factor, which has weighed with the trial Court in assessing the evidence against the accused. The other circumstances are that the lands did not belong to accused No. 3, but only to accused Nos. 1 and 2, and therefore, there was only a remote connection between accused No. 3 and the deceased or the lands in question.

Further, insofar as the overt acts are concerned, the accusation against accused No. 3 was that, he had assaulted the deceased with a cycle chain, on his forehead and this had not caused any serious injury. Even the injuries said to have been caused by accused Nos. 1 and 2 with a weapon had not caused the immediate death of the deceased and he was in the hospital for over 43 days and died of certain complications having developed. It is therefore, evident that the Court below has carefully assessed the evidence in arriving at a conclusion that the prosecution has only established its case against accused Nos. 1 and 2 and not against accused No. 3. It is the categorical finding to this effect that the State has not chosen to file any appeal against the acquittal of accused No. 3. It is only the complainant, who has now chosen to file this appeal after an inordinate delay. Given the circumstances of the case and the manner in which the trial Court has addressed the same, we do not find any merit in the appeal and there is no ground for interference. Consequently, the appeal is rejected.